Citation Nr: 0912105
Decision Date: 04/01/09 Archive Date: 04/10/09
DOCKET NO. 07-32 023 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for a skin condition
3. Entitlement to service connection for erectile
dysfunction, to include as secondary to the service connected
paranoid schizophrenia.
4. Entitlement to service connection for a gastrointestinal
disorder, to include as secondary to the service connected
paranoid schizophrenia.
5. Entitlement to an evaluation in excess of 50 percent for
paranoid schizophrenia.
6. Entitlement to a total disability evaluation based on
individual unemployability (TDIU) due to service connected
disabilities.
REPRESENTATION
Appellant represented by: John S. Berry, Attorney at Law
ATTORNEY FOR THE BOARD
K. L. Wallin, Counsel
INTRODUCTION
The Veteran served on active duty from April 1967 to July
1969.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from an April 2007 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Lincoln, Nebraska. The RO, in pertinent part, denied the
benefits sought on appeal.
The Board notes that in the April 2007 decision, the claim
for hearing loss was denied on the basis that the Veteran
failed to submit new and material evidence to reopen the
claim. While hearing impairment was denied for insurance
purposes only in October 1969, the claim on appeal for
hearing loss is an original claim. Review of the claims
file does not reveal that a claim for entitlement to service
connection for bilateral hearing was ever previously denied.
The RO since readjudicated the matter on the merits in
November 2008. As will be explained in greater detail below,
the proper corrective notice was also given. Therefore, the
matter has been recharacterized as it appears on the cover
page of the instant decision.
FINDINGS OF FACT
1. The Veteran has been apprised of what evidence would
substantiate the claims for benefits and the allocation of
responsibility for obtaining such evidence; and all relevant
medical and lay evidence obtainable and necessary to render a
decision in these matters has been received.
2. Bilateral hearing loss disability is not shown in
service, or for years thereafter, and the Veteran does not
currently have a diagnosis of bilateral hearing loss
disability for VA compensation purposes that is related to
service.
3. A skin condition is not shown in service, or for years
thereafter, and the Veteran does not currently have a
diagnosed skin condition related to service.
4. Erectile dysfunction was not incurred during the
Veteran's active duty service and was not proximately due to
or the result of the service connected paranoid
schizophrenia.
5. A gastrointestinal disorder was not incurred during the
Veteran's active duty service and was not proximately due to
or the result of the service connected paranoid
schizophrenia.
6. The Veteran's service connected paranoid schizophrenia
has not been productive deficiencies in most areas, such as
work, school, family relations, judgment, thinking or mood,
due to such symptoms as: suicidal ideation; obsessional
rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse; spatial disorientation; or neglect of
personal appearance and hygiene.
7. Service connection is currently in effect for: paranoid
schizophrenia, 50 percent disabling; and tinnitus, 10 percent
disabling. A combined 60 percent rating has been in effect
since October 2006.
8. The Veteran's service-connected disabilities have not
been shown to render him unable to secure or follow a
substantially gainful occupation.
CONCLUSIONS OF LAW
1. The criteria for the establishment of service connection
for bilateral hearing loss have not been met. 38 U.S.C.A. §§
1101, 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385
(2008).
2. The criteria for the establishment of service connection
for a skin condition have not been met. 38 U.S.C.A. §§ 1101,
1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2008).
3. The criteria for entitlement to service connection for
erectile dysfunction, to include as secondary to service-
connected paranoid schizophrenia, have not been met. 38
U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 3.303, 3.310 (2008).
4. The criteria for entitlement to service connection for a
gastrointestinal disorder, to include as secondary to
service-connected paranoid schizophrenia, have not been met.
38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 3.303, 3.310 (2008).
5. The criteria for an evaluation in excess of 50 percent
for paranoid schizophrenia have not been met. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.130,
Diagnostic Code 9203 (2008).
6. Entitlement to TDIU is denied. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16,
4.18 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Preliminary Matters: Duties To Notify And Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at
38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. §
3.159, amended VA's duties to notify and assist a claimant in
developing the information and evidence necessary to
substantiate a claim.
Under 38 U.S.C.A. § 5103, VA must notify the claimant of any
information or evidence not of record that is necessary to
substantiate the claim, as well as what parts of that
information or evidence VA will seek to provide, and what
parts VA expects the claimant to provide. 38 C.F.R. §
3.159(b) (2008).
VA must provide such notice to a claimant prior to an initial
unfavorable decision on a claim for VA benefits by the agency
of original jurisdiction (AOJ), even if the adjudication
occurred prior to the enactment of the VCAA. See Pelegrini
v. Principi, 18 Vet. App. 112, 119-120 (2004). Furthermore,
the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all elements of a claim for service
connection, so that VA must specifically provide notice that
a disability rating and an effective date will be assigned if
service connection is awarded. Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson,
483 F.3d 1311 (2007).
VA complied with notification responsibilities in December
2006 and August 2007. These letters notified the Veteran of
VA's responsibilities in obtaining information to assist the
Veteran in completing his claims, and identified the
Veteran's duties in obtaining information and evidence to
substantiate his claims.
As noted in the Introduction, while it appears that the RO
denied the claim regarding hearing loss in April 2007 on the
(mistaken) basis that new and material evidence had not been
received, the matter was properly readjudicated in November
2008 on the merits. Prior to the November 2008 supplemental
statement of the case (SSOC), a letter was sent to the
Veteran in August 2007 that met the notice requirements
delineated above. Notice pursuant to the Dingess decision
was sent in August 2007.
The Board is aware of the United States Court of Appeals for
Veterans Claims (Court) decision in Vazquez-Flores v. Peake,
22 Vet. App. 37 (2008) dealing with notice required in claims
for increased ratings. The December 2006 letter notified the
Veteran that in order to support his claim for increase, he
would have to submit evidence showing that his paranoid
schizophrenia had worsened in severity.
A letter was sent to the Veteran in April 2008, notifying him
of the decision in Vazquez-Flores. While the letter did not
set forth the specific criteria for psychiatric disabilities,
the Veteran was notified that the following was considered in
determining disability evaluations: nature and symptoms of
the condition; severity and duration of the symptoms; impact
of the condition and symptoms on employment and daily life;
and specific test results. Examples of evidence were also
set forth. The Board notes the specific rating criteria for
psychiatric disabilities was set forth in the April 2007
rating decision and August 2007 statement of the case (SOC).
As statements from the Veteran indicate awareness of the
evidence necessary to substantiate the claim for a higher
evaluation and the aforementioned letter, no further analysis
as to the adequacy of the notice in that regard is
necessary.
VA has also made reasonable efforts to assist the Veteran in
obtaining evidence necessary to substantiate his claims. 38
U.S.C.A. § 5103A (West 2002). The information and evidence
currently associated with the claims file consist of the
Veteran's service treatment records, post service private and
VA medical records, and reports of VA examination dated
between 1969 and 2008. The Veteran has not identified any
other evidence which has not been obtained.
For the foregoing reasons, the Board therefore finds that VA
has satisfied its duty to notify and the duty to assist
pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West
2002 & Supp. 2007); 38 C.F.R. §§ 3.159(b), 20.1102 (2007);
Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any
error in the sequence of events or content of the notice is
not shown to have any effect on the case or to cause injury
to the claimant. Thus, any such error is harmless and does
not prohibit consideration of this matter on the merits. See
Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d
534, 549 (Fed. Cir. 1998).
II. Analysis
The Board has reviewed all the evidence in the Veteran's
claims file. Although the Board has an obligation to provide
adequate reasons and bases supporting this decision, there is
no requirement that the evidence submitted by the Veteran or
obtained on his behalf be discussed in detail. Rather, the
Board's analysis below will focus specifically on what
evidence is needed to substantiate each claim and what the
evidence in the claims file shows, or fails to show, with
respect to each claim. See Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.
App. 122, 128-30 (2000).
A. Service Connection
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Evidence of continuity of symptomatology from the time of
service until the present is required where the chronicity of
a condition manifested during service either has not been
established or might reasonably be questioned. 38 C.F.R. §
3.303(b). Regulations also provide that service connection
may be granted for any disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disability was incurred in service.
38 C.F.R. § 3.303(d).
Moreover, where a veteran served continuously for ninety (90)
days or more during a period of war, or during peacetime
service after December 31, 1946, and sensorineural hearing
loss becomes manifest to a degree of at least 10 percent
within one year from date of termination of such service,
such disease shall be presumed to have been incurred in
service, even though there is no evidence of such disease
during the period of service. This presumption is rebuttable
by affirmative evidence to the contrary. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307,
3.309 (2007).
In order to prevail on the issue of service connection there
must be medical evidence of a current disability; medical
evidence, or in certain circumstances, lay evidence of in-
service occurrence or aggravation of a disease or injury; and
medical evidence of a nexus between an in-service injury or
disease and the current disability. See Hickson v. West, 12
Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App.
341, 346 (1999).
1. Bilateral Hearing Loss
The Veteran contends that his bilateral hearing loss is the
result of active military service. He has not set forth any
incident as to service incurrence.
Having carefully considered the Veteran's claim in light of
the record and the applicable law, the Board finds that the
preponderance of the evidence is against the Veteran's claim
and the appeal as to this issue will be denied.
First, it does not appear from the record that the Veteran
has a diagnosed hearing loss disability. Pursuant to
38 C.F.R. § 3.385, impaired hearing will be considered to be
a disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels
or greater, or when at least three of the frequencies 500,
1000, 2000, 3000, 4000 Hertz are 26 decibels or greater, or
when speech recognition scores using the Maryland CNC Test
are less than 94 percent.
Documents on file note that the Veteran has problems with
hearing, but they do not show that these problems with
hearing are so severe as to cause a hearing loss disability
as defined by 38 C.F.R. § 3.385. Upon VA examination in
April 2007,
pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
10
15
10
20
LEFT
10
15
5
20
35
Speech audiometry revealed speech recognition ability of 96
percent in the right ear and of 94 percent in the left ear.
The most recent VA outpatient treatment records dated between
2001 and 2008 are negative for complaints of or treatment for
hearing loss. Even if the Board were to assume the Veteran
has current hearing loss so severe as to constitute a
disability under 38 C.F.R. § 3.385, there is a 38-year
evidentiary gap in this case between the Veteran's active
service and the earliest medical evidence of some high
frequency hearing loss in 2007. A prolonged period without
medical complaint can be considered, along with other factors
concerning a claimant's health and medical treatment during
and after military service, as evidence of whether an injury
or disease was incurred in service, which resulted in any
chronic or persistent disability. See Maxson v. Gober, 230
F.3d 1330 (Fed. Cir. 2000). The Board must consider all the
evidence including the availability of medical records, the
nature and course of the disease or disability, the amount of
time that elapsed since military service, and any other
relevant facts in considering a claim for service connection.
Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir.
2000). Thus, when appropriate, the Board may consider the
absence of evidence when engaging in a fact-finding role.
See Jordan v. Principi, 17 Vet. App. 261 (2003)
(Steinberg, J., writing separately) (noting that the absence
of evidence may be considered as one factor in rebutting the
aggravation part of the section 1111 presumption of
soundness).
The Board notes that the absence of evidence constitutes
negative evidence against the claim for bilateral hearing
loss because it tends to disprove the claim that hearing loss
was the result of military service which in turn resulted in
a chronic disability or persistent symptoms thereafter. See
Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom.
Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002)
(noting that the definition of evidence encompasses
"negative evidence" which tends to disprove the existence
of an alleged fact); see also 38 C.F.R. § 3.102 (noting that
reasonable doubt exists because of an approximate balance of
positive and "negative" evidence). Thus, the lack of any
objective evidence of hearing loss between the period of
active military service and some hearing loss in 2007 is
itself evidence which tends to show that bilateral hearing
loss did not have its onset in service or for many years
thereafter.
Finally, the April 2007 VA examiner opined that hearing loss
was not likely related to the Veteran's military service,
specifically noise exposure, because the Veteran had normal
hearing at separation. The examiner reasoned that the Vetera
did not incur a permanent hearing loss as result of military
noise exposure as claimed because exposure to either impulse
sounds or continuous exposure can cause a temporary threshold
shift, which disappears in 16 to 48 hours after exposure to
loud noise. The examiner further explained that if hearing
did not recover completely from a temporary threshold shift,
a permanent hearing loss would exist; however, in the instant
case, the Veteran's separation examination was normal. The
examiner concluded that a normal audiogram subsequent to
noise exposure would verify that the hearing had recovered
without permanent loss.
The Board notes at this juncture that the Veteran contends
the examination was not adequate as the test was defective
and flawed. The Veteran has not submitted any evidence in
support of this assertion, nor does he set forth any specific
explanation as to how the examination was flawed. The 2007
VA examination report contains the results of an audiogram
and speech recognition scores. The examiner noted the
Veteran's present complaints and reviewed the medical
evidence of record, to include the Veteran's service
treatment records. Thereafter, the examiner presented the
opinion delineated above. The Board finds the examination
more than adequate to render a determination on the merits of
the Veteran's hearing claim.
Though the Veteran contends that he currently has bilateral
hearing loss that is related to his military service, there
is no medical evidence on file supporting the Veteran's
assertions and his statements do not constitute competent
evidence of a medical diagnosis or nexus opinion. Espiritu
v. Derwinski, 2 Vet. App. 492, 494-95 (1992).
In sum, the evidence is not in relative equipoise. The file
contains no record of an inservice incident or injury likely
to result in hearing loss. Bilateral hearing loss was not
shown during service or for years thereafter. The earliest
reports of hearing loss were not until 2007. The record does
not contain any medical evidence linking a hearing loss
disability to service. Thus, the preponderance of the
evidence is against the claim and the appeal must therefore
be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274
F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1
Vet. App. 49, 55-57 (1990).
2. Skin Condition
The Veteran contends that he has a skin condition that is the
result of active military service. Specifically, he asserts
that he was exposed to caustic and extra-hazardous chemicals
and compounds during his miliary service.
Having carefully considered the Veteran's claim in light of
the record and the applicable law, the Board finds that the
preponderance of the evidence is against the Veteran's claim
and the appeal as to this issue will be denied.
First, the Veteran's DD-214 shows that he was a special
electrical technician. There is no indication that his
military occupational specialty involved exposure to caustic
or extra-hazardous chemicals. Second, the service treatment
records are wholly devoid of complaints, treatment, or
diagnoses of a skin condition. The June 1969 separation
examination was similarly negative.
Post-service, reports of VA examination dated between 1969
and 1983 are negative for a diagnosed skin condition. An
April 1986 VA examination report simply noted a seven to
eight millimeter mole in his mid lower thoracic spine.
Reports of VA examination dated between 1988 and 2007 were
also negative for a diagnosed skin condition.
VA outpatient treatment records dated in January 2002
indicate the Veteran had an "area" on the left side of his
cheek and mole on his back. A skin condition was not
diagnosed. In October 2005, the Veteran was treated for
cellulitis of the bilateral calves. The Veteran continued to
be treated for cellulitis in 2007, as well as a right lower
extremity ulcer in June 2008. There was no indication that
cellulitis was related to the Veteran's military service.
In the instant case, there is a 36-year evidentiary gap
between the Veteran's active service and the earliest medical
evidence of cellulitis in 2005 (note: a skin condition was
not diagnosed in 1986 when a mole was noted or 2002 when he
had an "area" on his left cheek). The Board notes that the
absence of evidence constitutes negative evidence against the
claim because it tends to disprove that a skin condition, was
the result of military service which in turn resulted in a
chronic disability or persistent symptoms thereafter. See
Maxson, supra; see also Forshey, supra.
Finally, while the Veteran's representative argues that an
examination is warranted, the Board disagrees. There is no
evidence that the Veteran suffered an event, injury, or
disease in service, or that cellulitis may be associated with
such service more than 30 years ago, and as there is nothing
in the record from service to point to show as a cause or
onset of a current skin condition, it is not necessary to
obtain a medical examination or medical opinion in order to
decide the claim. 38 C.F.R. § 3.159(c)(4)(i); Duenas v.
Principi, 18 Vet. App. 512, 517.
Though the Veteran contends that he currently has a skin
condition, presumably cellulitis, that is related to his
military service, there is no medical evidence on file
supporting the Veteran's assertions and his statements do not
constitute competent evidence of a medical diagnosis or nexus
opinion. Espiritu, 2 Vet. App. at 494-95.
In sum, the evidence is not in relative equipoise. The file
contains no record of an inservice incident or injury likely
to result in a skin condition. A skin condition was not
shown during service or for years thereafter. The earliest
reports of cellulitis were not until 2005. The record does
not contain any medical evidence linking a skin disability to
service. Thus, the preponderance of the evidence is against
the claim and the appeal must therefore be denied. 38
U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet.
App. at 55-57.
3. & 4. Erectile Dysfunction and Gastrointestinal Disorder
The Veteran asserts that his erectile dysfunction and
gastrointestinal disorder are due to his service connected
paranoid schizophrenia and/or the medication taken for such.
A disability, which is proximately due to, or the result of a
service-connected disease or injury shall be service-
connected. 38 C.F.R. § 3.310. When service connection is
thus established for a secondary condition, the secondary
condition shall be considered a part of the original
condition. Id; See Libertine v. Brown,
9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App.
183, 18 (1993).
Based on a review of the evidence, the Board finds that
service connection for erectile dysfunction and a
gastrointestinal disorder, cannot be granted in this case on
a secondary basis. First, the March 2007 VA examiner opined
that complaints of gas, explosive diarrhea, and bleeding were
not caused by or the result of medication used for
schizophrenia. The examiner reasoned that the Physician Desk
Reference did not list the aforementioned complaints as side
effects of Citalopram or Risperidone, medications used to
treat the Veteran's schizophrenia. In a May 2007 addendum
opinion, the examiner clarified that the Veteran could
perhaps have irritable bowel syndrome (IBS); however, since
the Veteran's diarrhea was intermittent despite the chronic
use of medication for schizophrenia, there is little to
support a correlation between medications and aggravation of
the IBS.
Second, the April 2007 VA examiner opined that a
gastrointestinal disorder and erectile dysfunction were not
caused by or the result of the schizophrenia. The examiner
reasoned that medical literature did not show that
schizophrenia caused erectile dysfunction or gastrointestinal
disorders. The examiner also noted that VA outpatient
treatment records dated in April 2007 showed the Veteran
denied any side effects on his current medications.
While the Veteran does not contend that erectile dysfunction
or a gastrointestinal disorder are directly related to his
period of active duty, the Board finds it pertinent that
service treatment records are wholly devoid of treatment or
diagnoses of the claimed disabilities. There are no opinions
of record indicating that either erectile dysfunction or a
gastrointestinal disorder is directly related to the
Veteran's active service. 38 C.F.R. § 3.303.
In sum, the evidence is not in relative equipoise. The file
contains no record of an inservice incident or injury likely
to result in erectile dysfunction or a gastrointestinal
disorder. The claimed conditions were not shown during
service or for years thereafter. The record does not contain
any medical evidence linking erectile dysfunction or a
gastrointestinal disorder to the Veteran's military service
on any basis, to include as secondary to the service
connected paranoid schizophrenia. The medical opinions of
record indicate that these conditions are not related to
medication for a service-connected condition. Thus, the
preponderance of the evidence is against the claims and the
appeals must therefore be denied. 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.310; Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet.
App. at 55-57.
B. Increased Rating
Historically, in initiating the instant appeal, the Veteran
disagreed with the April 2007 rating decision, which
continued a 50 percent evaluation for paranoid schizophrenia.
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule) and are intended to represent the average
impairment of earning capacity resulting from disability.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be
reviewed in relation to their history. 38 C.F.R. § 4.1.
VA should interpret reports of examination in light of the
whole recorded history, reconciling the various reports into
a consistent picture so that the current rating may
accurately reflect the elements of disability. 38 C.F.R.
§ 4.2. Any reasonable doubt regarding the degree of
disability should be resolved in favor of the claimant.
38 C.F.R. § 4.3. Where there is a question as to which of
two evaluations apply, the higher of the two should be
assigned where the disability picture more nearly
approximates the criteria for the next higher rating.
38 C.F.R. § 4.7. When considering functional impairment
caused by a service-connected disorder, evaluations should be
based on an assessment of the lack of usefulness, and
adjudicators should consider the effects of the disabilities
upon the person's ordinary activity. 38 C.F.R. § 4.10; See
also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the Veteran's condition. Schafrath,
1 Vet. App. at 594. However, where an increase in the level
of a service-connected disability is at issue, the primary
concern is the present level of disability. Francisco v.
Brown, 7 Vet. App. 55 (1994).
Separate ratings may be assigned for separate periods of time
based on the facts found. This practice is known as "staged"
ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007).
Ratings shall be based as far as practicable, upon the
average impairments of earning capacity with the additional
proviso that the Secretary shall from time to time readjust
this schedule of ratings in accordance with experience. To
accord justice, therefore, to the exceptional case where the
schedular evaluations are found to be inadequate, the Under
Secretary for Benefits or the Director, Compensation and
Pension Service, upon field station submission, is authorized
to approve on the basis of the criteria set forth in this
paragraph an extra-schedular evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability or disabilities. The governing
norm in these exceptional cases is: A finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1).
The Veteran contends that an evaluation in excess of 50
percent is warranted for his paranoid schizophrenia.
Specifically, the Veteran maintains that his schizophrenia
creates deficiencies in his home, family, and work life. He
also asserts that he is underemployed in a job which
tolerates his symptoms.
Under 38 C.F.R. § 4.130, Diagnostic Code 9203, a 50 percent
disability evaluation is assigned for mental disorders where
the evidence shows occupational and social impairment due to
such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment in short-term and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired abstract thinking; disturbances
of motivation and mood; difficulty in establishing and
maintaining effective work and social relationships.
38 C.F.R. § 4.130.
A 70 percent disability evaluation is warranted for
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking or mood, due to such symptoms as: suicidal ideation;
obsessional rituals which interfere with routine activities;
speech intermittently illogical, obscure, or irrelevant;
near-continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a work like
setting); inability to establish and maintain effective
relationships. Id.
A 100 percent disability evaluation is warranted where the
evidence shows total occupational and social impairment, due
to such symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; inability to perform activities of daily
living (including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation, or own name. Id.
The Board has thoroughly reviewed all the evidence of record
and after careful consideration, the Board finds that the
Veteran's schizophrenia more closely approximates the
criteria for the currently assigned 50 percent rating. In
this regard, at the time of the Veteran's January 2000
examination, he was assigned a Global Assessment of
Functioning Scale Score (GAF) of 55, which according to the
Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition, of the American Psychiatric Association (DSM-IV), is
indicative of moderate symptoms or moderate difficulty in
social or occupational functioning.
VA outpatient treatment records dated between 2005 and 2008
actually appear to show an improvement in schizophrenia
symptomatology. His GAF scores ranged from 67 in November
2005 to 65 in April 2007, indicative of only mild symptoms.
In June 2005, the Veteran denied anxiety and depression. The
entries dated in November 2005, April 2006, October 2006, and
April 2007 reveal the Veteran denied irritability, anger,
anxiety, or sleeplessness. He was oriented in all spheres.
Affect was normal. Speech was fluent. There was no thought
disorder or suicidal or homicidal ideation. Insight and
judgment were good. There were no problems with memory or
concentration.
Upon VA examination in April 2007, the Veteran had a decrease
in the severity of his symptoms. He was assigned a GAF of
62, indicative of some mild symptoms or some difficulty in
social or occupational functioning, but generally functioning
pretty well and has some meaningful interpersonal
relationships. This assessment was based on a physical
examination which showed the him to be clean and
appropriately dressed. The examiner reported that there was
no psychomotor activity. Speech was spontaneous, clear and
coherent. The affect was constricted and flat; however, the
examiner noted the Veteran was worried about his medical
appointments. The Veteran was oriented in all spheres.
Judgment and insight were intact. The Veteran did endorse
sleep problems. He denied obsessive, ritualistic behavior,
panic attacks, delusions, hallucinations, and homicidal and
suicidal thoughts. The Veteran denied any current
hospitalization for his schizophrenia. There was no
uncontrolled violence. Recent and remote memory was normal.
The Veteran maintained full time employment. The examiner
concluded the Veteran had only mild symptoms with the use of
medication. The examiner indicated there was no total
occupational and social impairment due to the mental
disorder.
VA outpatient treatment records dated in October 2007, April
2008, and October 2008 indicate the Veteran continued to be
assigned a GAF of 65 for mild schizophrenia symptoms. Mental
status examination showed the Veteran to be casually dressed.
He had good eye contact. Speech was fluent and spontaneous.
Mood was congruent and appropriate. There was no suicidal or
homicidal ideation. There were no auditory or visual
hallucinations. Thought process was linear and goal-
directed. Judgment and insight were moderate. There were no
psychotic symptoms.
In sum, an evaluation in excess of 50 percent, to include
"staged" ratings, is not warranted as the evidence does not
show symptomatology consistent with occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; or neglect
of personal appearance and hygiene. 38 C.F.R. § 4.130; See
Hart, supra. Any difficulty in adapting to stressful
circumstances or any inability to establish and maintain
effective relationships is provided for in the current 50
percent rating. Should the Veteran's disability picture
change in the future, he may be assigned a higher rating.
See 38 C.F.R. § 4.1.
In reaching the conclusion above, the Board has addressed the
applicability of the benefit of the doubt doctrine; however,
as the preponderance of the evidence is against the Veteran's
claim, that doctrine may not be favorably applied in the
instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d
at 1364; Gilbert, 1 Vet. App. at 55-57.
The Board has also considered the issue of whether the
Veteran's service-connected schizophrenia presented an
exceptional or unusual disability picture as to render
impractical the application of the regular schedular
standards such that referral to the appropriate officials for
consideration of an extraschedular rating is warranted. See
38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337,
338-339 (1996). While the Veteran argues that he is
underemployed, the fact remains that he maintains full-time
employment. There is no evidence revealing frequent periods
of hospitalization due to schizophrenia. There is nothing in
the record to distinguish his case from the cases of numerous
other veterans who are subject to the schedular rating
criteria for the same disability.
Moreover, the schedular criteria, in general, are considered
adequate to compensate for considerable loss of working time
from exacerbations or illnesses proportionate to the severity
of the several grades of disability. 38 C.F.R. § 4.1. The
assigned ratings adequately compensate the Veteran for the
nature and extent of severity of his schizophrenia.
Therefore, in the absence of exceptional factors, the Board
finds that the criteria for submission for consideration of
an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1)
are not met.
C. TDIU
The Veteran claimed TDIU in December 2006. He did not file a
formal application for TDIU. He simply asserts that he is
underemployed due to his service connected medical
conditions.
Generally, total disability will be considered to exist when
there is present any impairment of mind or body that is
sufficient to render it impossible for the average person to
follow a substantially gainful occupation. See 38 C.F.R. §
3.340. Total disability ratings are authorized for any
disability or combination of disabilities for which the
Schedule for Rating Disabilities prescribes a 100 percent
disability evaluation or, with less disability, if certain
criteria are met. Id. Where the schedular rating is less
than total, a total disability rating for compensation
purposes may be assigned when it is found that the disabled
person is unable to secure or follow a substantially gainful
occupation as a result of a single service-connected
disability ratable at 60 percent or more, or as a result of
two or more disabilities, provided at least one disability is
ratable at 40 percent or more, and there is sufficient
additional service-connected disability to bring the combined
rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l,
4.16(a).
Where these percentage requirements are not met, entitlement
to the benefits on an extraschedular basis may be considered
when the Veteran is unable to secure and follow a
substantially gainful occupation by reason of service-
connected disabilities. See 38 C.F.R. §§ 3.321(b), 4.16(b).
In determining whether an individual is unemployable by
reason of service-connected disabilities, consideration must
be given to the type of employment for which the Veteran
would be qualified. Such consideration would include
education and occupational experience. Age may not be
considered a factor. See 38 C.F.R.
§ 3.341. Unemployability associated with advancing age or
intercurrent disability may not be used as a basis for
assignment of a total disability rating. See 38 C.F.R. §
4.19.
The first step is to evaluate the Veteran's claim under the
objective criteria listed in 38 C.F.R. § 4.16(a). In the
instant case, the Veteran is in receipt of service connection
for: paranoid schizophrenia, 50 percent disabling and
tinnitus, 10 percent disabling. A combined 60 percent rating
has been in effect since October 2006. The Board found in
the instant decision that a higher rating for schizophrenia
is not warranted. While the Veteran did not appeal the
initial 10 percent rating for tinnitus, the Board notes that
he currently receives the maximum schedular rating available
for the disorder. The Board has also denied entitlement to
service connected for a skin condition, erectile dysfunction,
gastrointestinal disorder, and bilateral hearing loss in the
instant decision Therefore, he does not meet the specific
percentage requirements of 38 C.F.R. § 4.16(a).
Having failed to meet the objective criteria of 38 C.F.R.
§ 4.16(a), it then becomes necessary to consider the
Veteran's claim under § 4.16(b) subjective criteria. It is
the established policy of VA that all veterans who are unable
to secure and follow a substantially gainful occupation by
reason of service-connected disabilities shall be rated
totally disabled. 38 C.F.R. § 4.16(b). Therefore, rating
boards should submit to the Director, Compensation and
Pension Service, for extra-schedular consideration all cases
of veterans who are unemployable by reason of service-
connected disabilities, but who fail to meet the percentage
standards set forth in § 4.16(a). Id.
The issue is then whether the Veteran's service connected
disabilities, as previously noted, preclude him from engaging
in substantially gainful employment (i.e., work which is more
than marginal, that permits the individual to earn a "living
wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). For a
veteran to prevail on a claim for a total rating based on
individual unemployability, the record must reflect some
factor, which takes this case outside the norm. The sole
fact that a claimant is unemployed or has difficulty
obtaining employment is not enough. A high rating in itself
is recognition that the impairment makes it difficult to
obtain or keep employment, but the ultimate question is
whether the Veteran is capable of performing the physical and
mental acts required by employment, not whether he can find
employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).
In the instant case, medical records contained in the claims
folder to include, VA outpatient treatment records, reports
of VA examination, and private medical records, were reviewed
in support of the Veteran's claim.
VA outpatient treatment records dated in June 2005 reveal the
Veteran worked 40 hours per week at the donut shop and
another 20 hours per week "helping people." An entry dated
in November 2005 shows the Veteran worked 40 to 50 hours per
week at the donut shop.
A report of VA examination dated in April 2007 shows the
Veteran had no total occupational impairment due to his
schizophrenia. The Veteran was able to manage his benefits,
handle money, knew the amount of his monthly bills, and
helped paid said bills. The Veteran was employed full time
making donuts.
VA outpatient treatment records dated between 2007 and 2008
indicate the Veteran maintained his full time employment.
His schizophrenia symptoms were felt to be only mild.
Aside from the Veteran's own contentions, there is no medical
evidence to support his assertions of unemployability due
solely to his service-connected disabilities. There is no
indication the Veteran was hospitalized for any of the
service connected disorders. Finally, the Board notes that
the Veteran maintains full time employment.
While his representative argues that he is "underemployed,"
there is no indication that his work at the donut shop is
only marginal or prevents him from earning a "living wage."
See Moore, supra. There is no evidence that the Veteran is
incapable of performing the physical and mental acts required
by employment. See Van Hoose, supra.
The Board is required to address the issue of entitlement to
an extraschedular rating under 38 C.F.R. § 3.321(b)(1) only
in cases where the issue is expressly raised by the claimant
or the record before the Board contains evidence of
"exceptional or unusual" circumstances indicating that the
rating schedule may be inadequate to compensate for the
average impairment of earning capacity due to the disability.
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Fisher v.
Principi, 4 Vet. App. 57, 60 (1993); VAOPGPREC 6-96 (August
16, 1996). In addition, the Board is required to address
the issue of entitlement to TDIU under 38 C.F.R. § 4.16(b)
again only in cases where the issue is expressly raised by
the claimant or the record before the Board contains evidence
that the Veteran may be unable to secure or follow a
substantially gainful occupation due to his service-connected
disability. Id.
As it has been determined that the Veteran's service-
connected disabilities when standing alone do not render him
unable to follow a substantially gainful occupation, referral
to the Under Secretary for Benefits or the Director,
Compensation and Pension Service, is not necessary pursuant
to 38 C.F.R. § 3.321(b)(1); Floyd, supra; Bagwell, supra.
Accordingly, the Veteran's claim for entitlement to TDIU is
denied. As the preponderance of the evidence is against the
claim, the benefit of the doubt doctrine is not applicable.
Gilbert, 1 Vet. App at 54.
(CONTINUED ON NEXT PAGE)
ORDER
Entitlement to service connection for bilateral hearing loss
is denied.
Entitlement to service connection for a skin condition is
denied.
Entitlement to service connection for erectile dysfunction,
to include as secondary to the service connected paranoid
schizophrenia, is denied.
Entitlement to service connection for a gastrointestinal
disorder, to include as secondary to the service connected
paranoid schizophrenia, is denied.
Entitlement to an evaluation in excess of 50 percent for
paranoid schizophrenia is denied.
Entitlement to TDIU is denied.
____________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs